Eleventh Circuit Ruling on Alabama's HB 56 Fuels Debate over the Limits of State Immigration Measures

October 18, 2011

Policy Beat

By Claire Bergeron, Muzaffar Chishti

According to a ruling by the U.S. Court of Appeals for the Eleventh Circuit, public schools in Alabama are no longer required to record the immigration status of students.

Adding to the controversy surrounding the legality of state-level immigration enforcement laws, the U.S. Court of Appeals for the Eleventh Circuit has issued a split decision on Alabama's stringent new immigration law, enjoining some parts of HB 56 while allowing other provisions to be implemented.

Specifically, the Eleventh Circuit's ruling temporarily blocks the state from implementing two important provisions of the law — less than three weeks after a U.S. district court judge had green-lighted them. One provision requires public schools to track the immigration status of students, and the other allows the state to charge someone who fails to produce proof of legal status with a criminal offense. The appellate court's ruling stays implementation of both of these provisions, pending final outcome of the litigation surrounding HB 56.

The Eleventh Circuit's decision marks something of a partial victory for opponents of HB 56, which is widely viewed as one of the toughest immigration enforcement measures to be enacted by any state. On the one hand, the ruling blocks implementation of two of the most contentious portions of HB 56. The law's provision regarding students in public schools is considered especially controversial, and is largely seen as one of the reasons why the U.S. Department of Justice (DOJ) — which filed one of the lawsuits seeking to enjoin the law — chose to challenge Alabama in the first place.

On the other hand, the Eleventh Circuit's ruling leaves in place much of a decision issued on September 28 by U.S. District Court Judge Sharon Blackburn, allowing Alabama to move forward with implementing many of the law's provisions.

Notably, neither the appellate court nor Judge Blackburn enjoined the portion of HB 56 that requires local police to inquire into the immigration status of anyone stopped or arrested if an officer has a "reasonable suspicion" that the person is an unauthorized immigrant. Last April, the U.S. Court of Appeals for the Ninth Circuit upheld an injunction against a similar provision of Arizona's controversial 2010 immigration enforcement law, SB 1070. Now, with a clear split between circuit courts, it is highly likely that the Supreme Court will ultimately rule on the constitutionality of state measures like SB 1070 and HB 56.

History of HB 56

Alabama's HB 56, which Governor Robert Bentley signed into law last June, is one of five recently enacted state-level immigration enforcement laws that are roughly modeled after Arizona's SB 1070. Like SB 1070, HB 56 contains a number of provisions designed to ramp up immigration enforcement in Alabama and reduce the number of unauthorized immigrants in the state through a process of attrition.

Outside of Alabama, SB 1070-like laws — and Arizona's SB 1070 itself — have not fared particularly well in the federal courts. In Arizona, Georgia, Indiana, and Utah, federal judges have preliminarily stopped most portions of new immigration enforcement laws from taking effect on the basis that federal law preempts them. And a lawsuit challenging South Carolina's SB 1070-like law, SB 20, was filed in federal district court on October 12.

In her September ruling, however, Judge Blackburn rejected many of the arguments that other courts have accepted against state-level immigration enforcement measures. She found that most of the law's provisions, including the portion requiring police officers to inquire into the immigration status of those they believe may be unauthorized, are "complementary" to — and not in conflict with — federal immigration law.

Judge Blackburn also rejected DOJ's argument that the portion of the law dealing with alien registration requirements effectively criminalized unauthorized presence, which federal law only makes a civil offense. With respect to the portion of the law requiring schools to track the immigration status of students, Judge Blackburn found that the provision is not preempted by federal law because it does not create its own independent, state-specific registration scheme. She also found that the federal government had not sufficiently demonstrated that such a provision conflicts with U.S. foreign policy goals. (As previously mentioned, these provisions have now been blocked by the more recent ruling of the Eleventh Circuit).

Although most media attention has focused on the parts of HB 56 that Judge Blackburn did not block and were appealed, there were several important portions of the law that Judge Blackburn did enjoin. These include provisions that make it a state crime for unauthorized immigrants to apply for or solicit work; make it unlawful to conceal, harbor, shield, or transport unauthorized immigrants; forbid employers from claiming business tax deductions on wages paid to unauthorized immigrants; and allow Alabama residents to bring civil lawsuits against employers who discharge lawful workers while hiring or retaining unauthorized immigrants. Judge Blackburn also stopped implementation of a provision prohibiting unauthorized immigrant students from attending public colleges and a provision barring day laborers from soliciting employment.

Response to the Rulings on HB 56

Supporters of HB 56 have seen both Judge Blackburn's initial decision and the Eleventh Circuit ruling as wins for proponents of tough immigration enforcement. Immediately following the September 28 ruling, Governor Bentley called the decision a “victory” for Alabama and promised to appeal the sections of the ruling that enjoined portions of the law. Alabama State Representative Micky Hammon, who authored HB 56, also praised the Blackburn ruling. Similarly, Alabama House Speaker Mike Hubbard praised the Eleventh Circuit decision, noting that the court had permitted the "most effectual parts" of the law to remain in place.

For opponents of measures like HB 56, the Blackburn ruling seemed a step back from a series of recent court victories, with an immediate impact on immigrants and immigrant communities across the state.

A number of news articles have reported that, in the aftermath of Judge Blackburn's ruling, nearly 2,000 Hispanic children stayed home from school, apparently because of parents' concerns about the provision that would make immigration status more transparent in public schools. Though the initial high absentee rates decreased after several days, a number of Alabama school superintendents and principals issued public service announcements and hosted community forums in the three weeks between the two court rulings (when that particular provision was still in effect) in order to try and reassure anxious parents that they and their children would not be reported to immigration officials for having unauthorized status if the kids attended school.

Immigrant advocates in Alabama have also reported that the new law has sparked fear among some immigrants over accessing public utilities and public services, including emergency medical care. They attribute this to concerns about the provision of the law that prohibits unauthorized immigrants from entering into agreements with a state municipality, a provision that the Eleventh Circuit has allowed to go into effect.

In addition, farmers and agricultural groups have raised concerns over the present and future effects of the new law on their businesses. They believe that HB 56 appears to be driving away lawful immigrant workers who fear that they may be targeted by the law. Their concerns have been reinforced by a new report finding that HB 87 — a similar law targeting unauthorized workers in Georgia — has likely cost the state millions of dollars in economic losses.

Legal scholars and political analysts are also closely following the progress of the HB 56 lawsuit in order to gauge the impact of the Alabama law beyond the state itself. In light of the appellate court's ruling, the Obama administration may ask the Supreme Court to accept for review the Ninth Circuit decision upholding an injunction against most provisions of SB 1070. That would ensure that the court weighed in on the state immigration enforcement issue early, before more states follow in the footsteps of Arizona and Alabama by enacting their own state-level immigration enforcement measures.

New Prosecutorial Discretion Policy for Noncitizens in Removal Proceedings. In a significant policy development, Homeland Security Secretary Janet Napolitano announced that a new committee made up of Department of Homeland Security (DHS) and Department of Justice (DOJ) officials will review roughly 300,000 removal cases pending before the immigration courts and move not to prosecute “low-priority” cases where the noncitizen facing removal has no criminal history and has strong ties to the United States. In determining which cases will be classified as low priority, the committee will use the factors outlined in a June 17 U.S. Immigration and Customs Enforcement (ICE) memo, including the noncitizen's age, health, immigration and criminal history, and whether the person has U.S. citizen and permanent resident family members.

According to news reports quoting DHS officials, individuals whose cases are not prosecuted will likely be eligible to apply for temporary work permits. The new announcement won accolades from immigrant advocates, but proponents of tougher immigration enforcement sharply criticized it as a form of administrative amnesty.

Find out more about the Obama administration's use of prosecutorial discretion for immigration cases in the September 2010 Policy Beat.

Read the letter from Secretary Napolitano to Senator Richard Durbin announcing the new policy change.

Read the June 17 ICE memo that lays out guidelines for when ICE officials should grant prosecutorial discretion.

With Task Force Resignations and Report, Continued Scrutiny of Secure Communities. ICE's Secure Communities program attracted further controversy last month when a task force appointed by the agency to review the jail-screening program issued a report criticizing the government for providing inaccurate and incomplete information. The report also indicated that Secure Communities might interfere with community policing efforts.

In another indication of the continued controversy surrounding the program, five of the 19 members of the task force quit before the group released its recommendations, reportedly because they disagreed with the endorsements made and felt that the panel should have been more critical of the program.

Meanwhile, DHS and ICE officials have continued to praise Secure Communities. During a recent speech at American University, Homeland Secretary Janet Napolitano said that the program was helping her agency "track down criminals and gang members on our streets and in our jails."

Read the text of Secretary Napolitano's recent remarks at American University.

Supreme Court to Decide Case on Cancellation of Removal for Immigrant Children. The U.S. Supreme Court announced that it will accept for review two cases that turn on whether lawful permanent resident children may count a parent's years as a permanent resident in the United States when applying for cancellation of removal. Under the law, certain lawful permanent residents facing removal who have been permanent residents for at least five years and who have resided continuously in the United States for at least seven years (after being admitted in any status) may apply for cancellation of removal in immigration court.

In the two cases to be reviewed by the Supreme Court, the U.S. Court of Appeals for the Ninth Circuit held that when minors seek cancellation, they can impute their parents' time as permanent residents in order to meet the statutory requirements. The Department of Justice, which appealed the case, has argued that this interpretation is incorrect and that it interferes with the government's goal of removing high-priority criminal aliens.

Check out the Supreme Court docket, noting the questions presented in the two cases (which have been consolidated), Holder v. Gutierrez and Holder v. Sawyers.

Read the Department of Justice's petition requesting that the Supreme Court review one of the two cases, Holder v. Gutierrez.

Ninth Circuit Court of Appeals Strikes Down Redondo Beach Day Laborer Ordinance. The U.S. Court of Appeals for the Ninth Circuit, in an en banc decision, struck down as unconstitutional an ordinance enacted by Redondo Beach, CA that made it unlawful for anyone to stand on a street or highway and solicit or attempt to solicit employment business, or a monetary contribution. The decision reverses a previous ruling made by a three-member panel of the court of appeals that upheld the law's constitutionality in June 2010.

Supporters of the ordinance, which Redondo Beach enacted in 1987 and amended in 1989, argued that solicitation by day laborers interfered with the flow of traffic. In striking down the ordinance, however, the court of appeals held that it violated the day laborers' First Amendment right to free speech. The appeals court also rejected the city's argument that the ordinance only penalized "conduct" rather than speech.

Find out more about the prior Ninth Circuit decision in the Redondo Beach case in the July 2010 Policy Beat.

DOS Announces On-Site Visits for Summer Work Travel Program. The U.S. Department of State (DOS) announced that it would conduct a series of on-site reviews of U.S. employer participants in the Summer Work Travel Exchange Visitor Program, an exchange program that allows foreign students to live and work in the United States for up to four months. The program is part of the department's larger J-1 visa program, which facilitates temporary intercultural exchange programs for foreign students.

According to the new announcement, DOS will conduct site visits of the 14 employer participants that together sponsor roughly 65 percent of all Summer Work Travel Exchange Visitor Program participants. A total of 51 entities are designated sponsors participating in the program. The DOS action follows a number of recent reports suggesting abuses in or misuse of the J-1 visa program.

Diversity Visa Lottery Opens for 2013 Applicants. DOS announced the opening of the 2013 diversity visa lottery program, which grants up to 55,000 visas for lawful permanent residents to individuals from countries whose nationals do not otherwise make up a sizeable percentage of permanent resident admissions to the United States. For the 2013 diversity visa program, nationals from Bangladesh, Brazil, Canada, China, Colombia, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, the Philippines, South Korea, the United Kingdom, and Vietnam are not eligible to apply, because those countries have contributed a sizeable number of immigrants to the United States over the past five years. Foreign nationals hoping to participate in the program have until November 5, 2011 to apply.

Read the DOS application instructions for current diversity visa applicants.

State and Local Policy Beat in Brief

CA Governor Signs State DREAM Act. California Governor Jerry Brown signed into law AB 131, the second bill in a two-bill package that supporters have labeled the California DREAM Act. The bill builds upon previous legislation that allows certain unauthorized immigrant students in California to attend public colleges and universities by allowing such students to apply for state-funded financial aid.

The first DREAM Act bill, which Brown signed over the summer, allowed unauthorized students who are eligible to pay in-state tuition to apply for privately funded financial aid.

In-State Tuition Policy in Rhode Island. The Board of Governors for Higher Education in Rhode Island has approved a measure that will allow certain unauthorized immigrant students in the state to pay in-state tuition at public colleges and universities, beginning in 2012. To be eligible under the new policy, students must demonstrate that they attended at least three years of high school in Rhode Island and that they have graduated or obtained a high school equivalency diploma. According to the National Conference of State Legislatures, 12 other states have similar in-state tuition laws.

New York Governor Signs Executive Order on Language Access. New York Governor Andrew Cuomo signed a new executive order that requires state agencies that provide direct services to the public to offer free interpretation and translation services for individuals who do not speak English. Based on data from the U.S. Census Bureau on the top languages spoken in New York (other than English), the agencies will offer the translation services in Chinese, French, French Creole, Italian, Russian, and Spanish. According to the new executive order, an estimated 2.5 million New Yorkers have limited English proficiency.